In re J.S.

 

 

 

 

 

 

 

 

 

 

Filed 10/3/13  In re J.S. CA2/5

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>NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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California Rules of Court, rule 8.1115(a), prohibits courts
and parties from citing or relying on opinions not certified for publication or
ordered published, except as specified by rule 8.1115(b).  This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115>.

 

IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

 

SECOND
APPELLATE DISTRICT

 

DIVISION
FIVE

 

 
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In re J.S., a Person Coming Under the Juvenile Court Law.	B246727       (Los Angeles County       Super. Ct. No. CK81873)
LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES,               Plaintiff and Respondent,               v.   APRIL S.,               Defendant and Appellant.

 

            APPEAL from
an order of the Superior Court
of href="http://www.adrservices.org/neutrals/frederick-mandabach.php">Los Angeles
County, Terry Truong, Temporary Judge.  (Pursuant to Cal.
Const., art. VI, § 21.)  Affirmed.

            Andrea R.
St. Julian, under appointment by the Court of Appeal, for Defendant and
Appellant.

            John F. Krattli, County
Counsel, James M. Owens, Assistant County Counsel and Sarah Vesecky, Deputy
County Counsel for Plaintiff and Respondent.

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            J.S. was
adjudged a dependent of the juvenile court. 
Pursuant to Welfare and Institutions Code, section 366.26, subdivision
(c)(1),href="#_ftn1" name="_ftnref1" title="">[1] the court terminated the
parental rights of her mother April S. (mother) and ordered J.S. placed for
adoption.  Mother contends the court’s
order was erroneous because there existed two statutory exceptions to the
requirement that the juvenile court order adoption:  (1) mother has a beneficial relationship with
J.S. (§ 366.26, subd. (c)(1)(B)(i)); and (2) adoption would substantially
interfere with the child’s relationship with her siblings (§ 366.26, subd.
(c)(1)(B)(v)).  We hold the juvenile
court properly found neither exception applicable and affirm the court’s order.

 

I.  FACTUAL AND PROCEDURAL BACKGROUND

 

             Mother and Michael S. (father) are the parents
of J.S., born in October, 2009.  Mother
and Michael H. are the parents of Leslie (13), Michael (11), James (9),
and Sean (7). 

            On April
15, 2010, the Department of Children and
Family Services (DCFS) filed a petition pursuant to section 300,
subdivisions (a), (b), (g), and (j) regarding the minors.  On May
17, 2010, Michael H. pled no contest to a count alleging his
children were at risk as a result of his inability to provide them with the
necessities of life.  On August 11, 2010, mother and father
pled no contest to an amended petition alleging:  father inappropriately physically disciplined
J.S.’s siblings; mother and father engaged in physical altercations in the
children’s presence; mother did not protect the children from father; father
abused alcohol in the children’s home; and the parents’ conduct put J.S. and
her siblings at risk of harm.  The
juvenile court sustained the amended petition, declared the children dependents
of the court, removed them from their parents’ custody, and ordered them
suitably placed.  All five children were
placed with Michael H.’s mother, Loretta C., and her husband Cesar M.,
with whom they had resided for the past three years.  The court also ordered visitation and family
reunification services. 

            At the
status review hearings conducted during 2010 and 2011, the juvenile court found
mother was in partial compliance with her case plan.  Though mother had completed a parenting
class, her visits with J.S. were inconsistent as was her attendance at domestic
violence counseling.  Father had been
arrested in September 2011 for warrants related to domestic violence and
driving under the influence of alcohol. 
At the contested 12-month review hearing held pursuant to section
366.22, subdivision (a) on November 22,
2011, the court terminated reunification services, stating it did
not believe mother or father “had made any progress in the case.  None whatsoever.”   The court concluded mother had “no idea what
domestic violence is all about.”  The
court indicated the permanent plan for J.S. was adoption by Loretta C., and set
the section 366.26 hearing for March
20, 2012.

            On that
date, the court continued the hearing in order for DCFS to interview Leslie,
Michael and James regarding their views about being adopted.  During a subsequent interview, Leslie (who
was then 12 years old) indicated she wanted to remain with her caregivers, but
not be adopted. 

            After
additional continuances, the contested section 366.26 hearing was held on November 5, 2012.  Mother testifiedhref="#_ftn2" name="_ftnref2" title="">[2] she and the children had a
close bond and said she would feel “really bad” if her parental rights were
terminated.  Mother attributed her
inconsistent visits to her work schedule. 
Mother testified she prepared meals for J.S. at a friend’s home and
brought the food to her visits.  Mother
also stated she and J.S. engaged in preschool activities and that she was
responsible for disciplining the child during the visits.

            The
remainder of the evidence presented at this hearing consisted principally of
Leslie’s testimony concerning her ambivalence about being adopted by her
grandmother.  Leslie also testified that
she loved J.S., and it would make her sad if J.S. were no longer legally her
sister because she “[would not] be able to play with her.” 

            In closing
arguments, father’s attorney objected to J.S. being adopted:  “We’d ask the court to find an exception
applies for the child Leslie and that, as a result of that, that there’s an
exception for all of the children through a sibling exception [and] that [J.S.]
should not be adopted because she does have a relationship with Leslie, as
Leslie testified to.  So we’d ask the
court not to terminate parental rights today.” 
Mother’s counsel joined in father’s counsel’s arguments.   

            The court
stated:  “With regards to Leslie,
Michael, James, and Sean, I do find that it would be detrimental for this court
to terminate parental rights of those children.”  The court continued the older children’s case
so that DCFS could address legal guardianship with Kin-Gap.  The court then turned to J.S., stating:  “[J.S.] is the one that I am having
difficulty with.  I do believe that --
well, I do not believe that the (c)(1)(B)(i) exception applies to [J.S.].  Neither parent has ever, as far as I can tell,
parented, really parented [J.S.]. 
[¶]  The issue I have is the
sibling exception, but I also don’t find that there would be a substantial
interference, which is what I would have to find in order for this court to
find a sibling exception to this case. 
The children are all residing with the same caregiver.  They have resided with the same caregivers
throughout the pendency of this case.  And
as a result, I just do not have sufficient evidence before me to either find
detriment if I were to terminate parental rights over her or that there would
be a sibling exception in this case.” 
The court continued the case to permit DCFS to explore Loretta C.
and Cesar M. views on adopting J.S. while taking legal guardianship of the
other four minors. 

            At the continued
hearing on January 17, 2013,
father’s counsel reiterated his client’s objection to the termination of
parental rights and asked the court to find that there was an exception to
adoption.  Mother’s counsel stated,
“mother also objects to the adoption of [J.S.] and would ask the court to find
that there is a sibling exception.”  The
court determined no exception to adoption was demonstrated and terminated
mother’s and father’s parental rights to J.S.

            Mother
timely appealed the order.

 

II.  STANDARD OF REVIEW

 

            The
Sixth District Court of Appeal in In re
Bailey J. (2010) 189 Cal.App.4th 1308, discussed the split of authority
concerning the standard of review applicable to a juvenile court’s ruling on
whether an exception to termination of parental rights under
section 366.26, subdivision (c)(1)(B) applies in a given case.  “In In re Jasmine D. (2000) 78
Cal.App.4th 1339 (Jasmine), the First District Court of Appeal
acknowledged that most courts had applied the substantial evidence standard of
review to this determination. 
[Citation.]  However, the First
District concluded that the abuse of discretion standard of review was ‘a
better fit’ because the juvenile court was obligated to make ‘a
quintessentially discretionary determination.’ 
[Citations.]”  (>In re Bailey J., >supra, 189 Cal.App.4th at p. 1314.)

             â€œIn our view, both standards of review come
into play in evaluating a challenge to a juvenile court’s determination as to
whether the parental or sibling relationship exception to adoption applies in a
particular case.  Since the proponent of
the exception bears the burden of producing evidence of the existence of a
beneficial parental or sibling relationship, which is a factual issue, the
substantial evidence standard of review is the appropriate one to apply to this
component of the juvenile court’s determination.  Thus, as this court noted in In re I.W.
(2009) 180 Cal.App.4th 1517, a challenge to a juvenile court’s finding that
there is no beneficial relationship amounts to a contention that the ‘undisputed
facts lead to only one conclusion.’  (In
re I.W., [supra, 180
Cal.App.4th] at p. 1529.)  Unless the
undisputed facts established the existence of a beneficial parental or sibling
relationship, a substantial evidence challenge to this component of the juvenile
court’s determination cannot succeed.”  (>In re Bailey J., supra, 189 Cal.App.4th at p. 1314.)

            “The
same is not true as to the other component of these adoption exceptions.  The other component of both the parental
relationship exception and the sibling relationship exception is the
requirement that the juvenile court find that the existence of that
relationship constitutes a ‘compelling reason for determining that
termination would be detrimental.’  (§
366.26, subd. (c)(1)(B), italics added.) 
A juvenile court finding that the relationship is a ‘compelling reason’
for finding detriment to the child is based on the facts but is not
primarily a factual issue.  It is,
instead, a ‘quintessentially’ discretionary decision, which calls for the
juvenile court to determine the importance of the relationship in terms
of the detrimental impact that its severance can be expected to have on the
child and to weigh that against the benefit to the child of adoption.  [Citation.] 
Because this component of the juvenile court’s decision is
discretionary, the abuse of discretion standard of review applies.”  (In re
Bailey J., supra, 189 Cal.App.4th at p. 1315.)

            Our
colleagues in Division Seven of this Court found persuasive >In re Bailey J.’s approach to reviewing the parental relationship and sibling
exceptions to adoption set forth in section 366.26, subdivision (c)(1)(B).  (In re
K.P. (2012) 203 Cal.App.4th 614, 621-622.) 
We do as well and apply this mixed standard of review here.

 

III.  DISCUSSION

 

            “Adoption
must be selected as the permanent plan for an adoptable child and parental
rights terminated unless the court finds ‘a compelling reason for determining
that termination would be detrimental to the child due to one or more of the
following circumstances:  [¶]  (i) The parents have maintained regular
visitation and contact with the child and the child would benefit from
continuing the relationship.  [¶]
. . .  [¶] (v) There would be substantial interference with a
child’s sibling relationship . . . .’ (§ 366.26, subd.
(c)(1)(B).)”  (In re Bailey J., >supra, 189 Cal.App.4th at
p. 1314.)  Under these provisions,
“the court must order adoption and its necessary consequence, termination of
parental rights, unless one of the specified circumstances provides a compelling reason for finding that
termination of parental rights would be detrimental to the child.  The specified statutory
circumstances—actually, exceptions to the general rule that the court
must choose adoption where possible—‘must be considered in view of the
legislative preference for adoption when reunification efforts have
failed.’  [Citation.]”  (In re Celine R. (2003) 31
Cal.4th 45, 53.)  “‘Adoption is the
Legislature’s first choice because it gives the child the best chance at [a
full] emotional commitment from a responsible caretaker.’  [Citation.]” 
(Ibid.)

            The
parent has the burden of establishing a statutory exception to adoption
applies.  (In re Bailey J., supra,
189 Cal.App.4th at p. 1314; Cal. Rules of Court, rule 5.725(d)(4).)  The burden of proof is href="http://www.fearnotlaw.com/">preponderance of the evidence.  (In re Aaliyah R. (2006) 136
Cal.App.4th 437, 449.)

 

1.  Beneficial Relationship Exception

 

            To
prove that the beneficial relationship exception applies, “the parent must show
more than frequent and loving contact, an emotional bond with the child, or
pleasant visits—the parent must show that he or she occupies a parental role in
the life of the child.  [Citation.]”  (In re I.W., supra, 180 Cal.App.4th at
p. 1527.)  Moreover, it is not
enough simply to show “some benefit to the child from a continued relationship
with the parent, or some detriment from termination of parental rights.”  (In re Jasmine D., supra, 78 Cal.App.4th at
p. 1349.)  There must be a
significant, positive emotional attachment between parent and child.  (In re Beatrice M. (1994) 29
Cal.App.4th 1411, 1418–1419.)

            Even
where such an attachment exists, it does not bar adoption if the child looks to
a prospective adoptive parent to meet her needs.  (In re Zachary G. (1999) 77 Cal.App.4th 799, 811.)  The parent must prove that the parental
relationship “promotes the well-being of the child to such a degree as to
outweigh the well-being the child would gain in a permanent home with new, adoptive
parents.”  (In re Autumn H. (1994) 27 Cal.App.4th 567, 575.)  “In other words, the court balances the
strength and quality of the natural parent/child relationship in a tenuous
placement against the security and the sense of belonging a new family would
confer.”  (Ibid.)  “‘When the benefits from a stable and
permanent home provided by adoption outweigh the benefits from a continued
parent/child relationship, the court should order adoption.’”  (In re
Jasmine D., supra, 78 Cal.App.4th at p. 1350; In re Autumn H., supra,
27 Cal.App.4th at p. 575.)  Factors
courts consider in determining the applicability of the parental relationship
exception include: (1) the age of the child, (2) the portion of the child’s
life spent in the parent’s custody, (3) the positive or negative effect of
interaction between the parent and the child, and (4) the child’s particular
needs.  (In re Angel B. (2002) 97
Cal.App.4th 454, 467; In re Autumn H., supra, 27
Cal.App.4th at p. 576.)  “Because a
section 366.26 hearing occurs only after the court has repeatedly found the
parent unable to meet the child’s needs, it is only in an extraordinary case
that preservation of the parent’s rights will prevail over the Legislature’s
preference for adoptive placement.”  (>In re Jasmine
D., supra, 78 Cal.App.4th at p. 1350.) 

            Mother did not assert in the
juvenile court that the beneficial parent relationship exception precluded
J.S.’s adoption.  Rather, she relied
solely on the sibling exception to argue against termination of her parental
rights.  She therefore forfeited the
right to raise the beneficial relationship issue on appeal.  (In
re Cheryl E. (1984) 161 Cal.App.3d 587, 603 [appellant cannot
complain that trial court failed to do that which it was not asked to do].)  In any event, even if the issue were not waived,
the evidence clearly demonstrates mother failed to carry her burden of
establishing the applicability of the exception in this case.

       Mother acknowledges her visitation with
J.S. was not consistent, but maintains “there were reasons for her inability to
maintain a consistent visitation schedule,” and states “in the context of her
limitations, [mother] had regular visits and contact with [J.S.].”  To prove the existence of a beneficial
parental relationship, mother cites her testimony that there was a close bond
between her children and herself, and that the DCFS reported she was
appropriate with J.S. during their visits and there was no evidence that the
visits negatively affected J.S.  Mother
fails to mention the social worker’s report prepared for the section 366.26
hearing, which noted J.S. was “indifferent” to visits with mother, and did not
cry or otherwise object when they came to an end.  As noted above, a challenge to the juvenile
court’s finding of no beneficial relationship amounts to a contention that the
undisputed facts lead only to the conclusion that such a relationship
existed.  (In re I.W., supra, 180
Cal.App.4th at p. 1529.)  That
cannot be said of the evidence presented here. 
In short, substantial evidence supports the juvenile court’s finding
that mother and J.S. did not share the beneficial relationship contemplated by
section 366.26, subdivision (c)(1)(B)(i).

 

2.  Sibling Relationship Exception

 

            Section
366.26 provides for an exception to termination of parental rights if it would
result in a “substantial interference with a child’s sibling relationship,
taking into consideration . . . whether ongoing contact is
in the child’s best interest, . . .”  (§ 366.26, (c)(1)(B)(v).)  “If the court determines terminating parental
rights would substantially interfere with the sibling relationship the court is
then directed to weigh the child’s best interest in continuing that sibling
relationship against the benefit the child would receive by the permanency of
adoption.  [Citation.]”  (In re
L.Y.L. (2002) 101 Cal.App.4th 942, 952.) 
“When considering the sibling relationship exception, the concern is the
best interests of the child being considered for adoption, not the interests of
that child’s siblings.”  (>In re Naomi P. (2005) 132 Cal.App.4th
808, 822.)  “[T]he application of [the
sibling relationship exception] will be rare, particularly when the
proceedings concern young children whose needs for a competent, caring and
stable parent are paramount.”  (>In re Valerie
A. (2007) 152
Cal.App.4th 987, 1014, italics added.)

            Here,
J.S. and her four siblings had lived together and would remain in the same home
even if J.S. but not her siblings were adopted by Loretta C. and Cesar M.  Thus, as the juvenile court concluded, there
was no risk of substantial interference with the sibling relationship on
account of J.S.’s adoption.  The juvenile
court’s factual finding to that effect is supported by href="http://www.mcmillanlaw.com/">substantial evidence.

 

 

 

IV.  DISPOSITION

 

The order is affirmed.

                                                NOT
TO BE PUBLISHED IN THE OFFICIAL REPORTS

 

 

                                                KUMAR,
J.href="#_ftn3" name="_ftnref3" title="">*

 

We concur:

 

 

            MOSK,
Acting P. J.                                      

 

 

            KRIEGLER,
J.